Constitutionality of the Rome Statute in Ukraine

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CONSTITUTIONALITY OF THE ROME STATUTE IN UKRAINE

Ganna Bykova

Supervisor: Nobuo Hayashi

Deadline for submission: September 1, 2008

Number of words: 12,861

27.08.2008

______________________________________________________________________________

UNIVERSITY OF OSLO Faculty of Law

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1. Introduction

Foreword

The idea to create an international criminal court appeared after the Second World War and only fifty years later such a court came into being. The Rome Statute of the International Criminal Court entered into force after attracting the necessary 60 ratifications in July 2002. As of 15 July 2008, the number of ratifications has risen to 107.¹ The International Criminal Court has started its work and it is the first permanent international judicial body that will bring to trial perpetrators of international crimes such as genocide, crimes against humanity, war crimes and the crime of aggression. For the sake of effectiveness of the Court, it is important that ratification efforts continue until the Rome Statute gets universal acceptance. This will ensure the ICC the broadest jurisdiction.

Acceptance of the Rome Statute poses a number of problems under domestic law;

particularly ratification of this document raises issues of constitutional compatibility.

Various issues have been raised in various countries (though some prove to be common to every state). However most states decided that their constitutions are in compliance with the Statute and ratified it. And only few states decided to amend constitutions.

Ukraine is one of the states that is yet to become party to the Court, and the first step was taken on 20 January 2000, when Ukraine signed the Rome Statute. The main problem that Ukraine encountered on the way towards ratification was compatibility of the Rome Statute with the Ukrainian Constitution. Ukraine found it necessary to amend the Constitution in order to overcome the incompatibility.

The aim of the thesis is to examine critically the constitutional issues that have been raised during the ratification of the Rome Statute by Ukraine. In this connection it will be discussed the opinion of the Constitutional Court of Ukraine on the conformity of the Rome Statute with the Constitution of Ukraine, and its way in managing the constitutional problems in light of international practice and opinions of both international and national scholars.

The thesis focuses on four main issues that questioned the Rome Statute’s constitutionality in Ukraine: the principle of complementarity, the irrelevance of official capacity, surrender of Ukrainian citizens to the Court and the enforcement of sentences of

1 See Rome Statute Ratification Chart by Region (July 15, 2008), available at http://www.iccnow.org/documents/RatificationsbyUNGroup_18_July_07.pdf

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imprisonment in third states. It will be analyzed the nature of every specific problem, applying to provisions of the Statute and provisions of the Constitution of Ukraine.

The thesis consists of five chapters. The first chapter of the thesis deals with general questions of ratification of the Rome Statute in Ukraine. A brief overview of the Ukrainian ratification process of international treaties will be given. Then the issues that raised concern about inconsistency of the Rome Statute with the Constitution of Ukraine will be examined. The second part of the first chapter touches upon the principle of complementarity of the ICC, which was declared inconsistent with the Constitution. The opinion of the Constitutional Court of Ukraine on this issue will be discussed in light of experience of other states and opinions of Ukrainian and international commentators.

Chapter two is focused on absence of immunity for Ukrainian officials under the Rome Statute. Examining both article 27 of the Rome Statute and experience of other states, the rule of irrelevance of official capacity before the ICC will be discussed, and whether it is compatible with constitutional provisions granting immunity to the President of Ukraine and People’s Deputies (Members of the Parliament).

Chapter three examines the issue of surrender of Ukrainian nationals to the ICC. The main question that will be discussed here is whether there is an inconsistency between the duty to surrender suspects to the International Criminal Court and constitutional ban on extradition and expulsion of Ukrainian nationals.

Chapter four deals with the question whether Ukrainian nationals serving sentences in another state may enjoy limited human rights guarantees in violation of the Constitution.

The opinion of the Constitutional Court of Ukraine will be discussed in conjunction with provisions of articles 103 - 106 of the Statute and principle of complementarity.

Chapter five is conclusion of the thesis. The issues that were not discussed by the Constitutional Court of Ukraine, but which may raise conflict between the Statute and the Constitution in the future will be examined.

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1.2 Movement towards ratification: the Ukrainian perspective

1.2.1 Ratification procedure for international treaties under the Ukrainian legislation

According to the Constitution of Ukraine consent to the binding character of international treaties is granted by the Verkhovna Rada of Ukraine² - the Parliament, sole body of legislative power in Ukraine.³

There is no obligation under the national legislation of Ukraine to ratify an international treaty, which has been previously signed, but a treaty that requires ratification, is generally signed by Ukraine with the intention of ratifying it.⁴

According to article 9 (1) of the Constitution, international treaties that are in force, ratified by the Verkhovna Rada of Ukraine, become part of domestic law of Ukraine.

Article 9 (2) provides that the conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine. Hence the Constitution of Ukraine is the supreme law of the country and therefore international treaties have no supremacy over it.

While Constitution provides general framework for the ratification procedures, the Law on International Agreements of Ukraine sets the procedure in details. The Law provides that international agreements of Ukraine shall be ratified following the adoption of the relevant law on ratification and the text of international agreement is a part thereof.

On the basis of law, signed and officially published by the President of Ukraine, the Speaker of the Verkhovna Rada of Ukraine shall sign the instrument of ratification, which shall be certified by the signature of the Minister of Foreign Affairs of Ukraine, if the agreement provides for exchange of instruments of ratification.⁵

The Constitutional Court of Ukraine makes conclusions on conformity of international agreements being considered by the Verkhovna Rada of Ukraine against the text of the Constitution of Ukraine.⁶ There is no requirement to seek conclusion of the Constitutional Court prior to ratification of a treaty. The Court provides such conclusions

2 Konstytuciya Ukrainy [Constitution of Ukraine] art.85.1 (32), the official translation is available at the web site of Verkhovna Rada of Ukraine, at http://www.rada.gov.ua/const/conengl.htm [hereinafter Constitution of Ukraine]

3 Id., art.75

4 Council of Europe, Treaty Making – Expression of Consent by States to be Bound by a Treaty (2001), 285 (this part of the report is specifically devoted to the treaty-making process in Ukraine)

5 Zakon Ukrainy pro Mizhnarodni Dogovory Ukrainy (2004) [Law on International Agreements of Ukraine]

art.9, available at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1906-15 (English translation is my own)

6 Constitution of Ukraine art.151

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only on the appeal of the President of Ukraine or the Cabinet of Ministers of Ukraine (article 151 of the Constitution). Decisions and conclusions of the Constitutional Court of Ukraine are final and are not subject to appeal.⁷

As it was mentioned above, in case when international treaties contravene the Constitution, ratification of such treaties is possible only if relevant amendments to the Constitution are introduced. Article 155 of the Constitution provides that a draft law on introducing amendments to the Constitution of Ukraine, previously approved by the majority of the constitutional composition of the Verkhovna Rada of Ukraine, is deemed to be adopted if at the next regular session of the Parliament of Ukraine no less than two- thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favour thereof.

One more important issue that should be mentioned is correlation between international treaties and Ukrainian legislation. The Constitution sets that ratified international treaties become integral part of national legislation, but it is silent on the issue whether treaties or legislation have priority. The answer can be found in article 19 (2) of the Law on International Agreements of Ukraine. According to this law provisions of international agreements ratified by Ukraine shall prevail over domestic law.

1.2.2 The conformity of the Rome Statute with the Constitution of Ukraine

The ratification of the Statute of the International Criminal Court has challenged constitutional provisions in many countries and Ukraine is not an exception. Having signed the Rome Statute on 20 January 2000, Ukraine is on the way to ratify it.

It is important to mention the significance of the debate on potential constitutional incompatibility. First, because the Statute does not provide for reservations (article 120 of the Statute), and therefore constitutional ‘challenges’ cannot be avoided by entering a reservation in relation to the contentious provision. The second factor is the procedural and political reality of amending a constitution.⁸

At the first stage the President of Ukraine pursuant to article 151 of the Ukraine’s Constitution made a request for an examination of the Rome Statute’s Constitutionality.

7 Zakon Ukrainy pro Konstytuciynyi Sud Ukrainy (1996) [Law on the Constitutional Court of Ukraine], art.65, available at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=422%2F96-%E2%F0 (English translation is my own)

8 Helen Duffy, National Constitutional Compatibility and the International Criminal Court, 11 Duke J. of Comp. & Int’l L. (2001), 6, available at

www.law.duke.edu/shell/cite.pl?11+Duke+J.+Comp.+&+Int'l+L.+5+pdf

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The President’s position was that the following provisions of the Rome Statute did not comply with the Constitution:

§ Surrender of citizens

§ Irrelevance of official capacity

§ The principle of complementarity of the International Criminal Court

§ Enforcement of sentences in third states

§ Exercise of the functions and authority of the ICC on the territory of Ukraine

§ Empowering Assembly of State Parties to establish the Elements of crimes and introduce amendments to them

§ The rules of procedure and evidence

§ Determination of punishment by the ICC

§ Vesting of the proof of guilt of the accused in Prosecutor elected by members of Assembly of State Parties.⁹

Many issues raised here prove to be common to many States prior to ratification like complementary jurisdiction of the ICC, prohibition on extradition of nationals and immunities of the officials.

On 11 July 2001 the Constitutional Court made a conclusion that most provisions of the Rome Statute were in conformity with the Constitution, except for the part concerning complementarity of the ICC, which was found as not corresponding to the Constitution.¹⁰ Consequently relevant amendments of the Constitution should be introduced before Ukraine ratifies the Statute (article 9 of the Constitution).

The first four issues mentioned above will be discussed in the following chapters.

Concerning other issues, the Constitutional Court ruled that they did not contradict the Constitution referring to article 9 of the Ukraine’s Constitution. This article provides that international treaties agreed to be binding by the Verkhovna Rada of Ukraine become integral part of national legislation of Ukraine. In its decision the Court mentioned that an international treaty is ratified by the Verkhovna Rada of Ukraine in the form of a law, which, by its legal nature, does not differ from other laws of Ukraine. Therefore Ukraine’s adherence to the Statute will not contradict to the requirement of article 75 and item 14 of

9 Vysnovok Konstytuciynogo Sudu Ukrainy u Spravi pro Nadannya Vysnovku Schodo Vidpovidnosti Konstytucii Ukrainy Rymskogo Statutu Mizhnarodnogo Kryminalnogo Sudu [Decision of the Constitutional Court of Ukraine on conformity of the Rome Statute with the Constitution of Ukraine], Case # 1-35/2001, 11 July 2001, paragraph 1, unofficial translation by the ICRC is available at http://www.icrc.org/ihl-

nat.nsf/46707c419d6bdfa24125673e00508145/11d83b3284a5cc4fc1256bc2004eabfa!OpenDocument [hereinafter Decision of the Constitutional Court of Ukraine]

10 Id., paragraph 2.1

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article 92 of the Constitution, according to which the Verkhovna Rada is the sole body of legislative power in Ukraine which determines the judicial system, status of judges, basis of judicial examination, organization and activity of the office of public prosecutor etc.

exclusively by laws.¹¹

Interestingly that only less than ten states from all the states that are now parties to the Statute have found it necessary to amend their constitutions.¹² And Ukraine belongs now to this small group of states that decided to amend their constitutions to ensure that they correspond to the Rome Statute.

1.3 The principle of complementarity and its compatibility with the Ukrainian Constitution

1.3.1 Constitutional issues raised by the Rome Statute

After the examination of the Rome Statute the Constitutional Court of Ukraine declared ‘the Rome Statute of the International Criminal Court, signed on behalf of Ukraine on 20 June 2000, submitted to Verkhovna Rada of Ukraine for granting consent in its obligation, as not corresponding to Constitution of Ukraine in the part, concerning the provisions of paragraph ten of the Preamble and article 1 of the Statute, whereas

‘International Criminal Court…complements national organs of criminal justice’.¹³ Some Ukrainian lawyers state that this position of the Court reflects sufficiently general attitude of the Ukrainian law practice towards the international law and its role in Ukrainian legal system.¹⁴

Considering this issue, the Court relied first on the articles 124 and 125 of the Ukrainian Constitution. According to article 124, justice in Ukraine is administrated exclusively by the courts. Judicial proceedings are performed by the Constitutional Court of Ukraine and Ukrainian courts of general jurisdiction. The system of courts of general jurisdiction consists of the Supreme Court of Ukraine, supreme specialized courts, appellate and local courts (article 125). The delegation of the functions of the courts and

11 Decision of the Constitutional Court of Ukraine, supra note 9, paragraph 2.4 - 2.8

12 States’ Responses to Issues Arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law (Roy S. Lee ed., 2005), xxi

13 Decision of the Constitutional Court of Ukraine, supra note 9, final conclusion

14 Dmytro Kuleba, Scho Stalosya z Rymskym Statutom v Ukraini, 4 Ukrainskyi Chasopys Mizhnarodnogo Prava (2003), p.39 [hereinafter Kuleba]

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also the appropriation of these functions by other bodies or officials is not permitted (article 124(1). Pursuant to article 125 it is prohibited to establish emergency and special courts.

Referring to paragraph ten of the Preamble and article 1 of the ICC Statute, the Constitutional Court concludes that possibility of such complementarity is not envisaged by Ukraine’s Constitution section VIII ‘Justice’ and do not comply with article 124 of Ukraine’s Constitution.¹⁵

In its decision the Court mentioned that nature of the ICC differs significantly from international judicial organs, particularly the European Court of Human rights whereas the right to petition for protection of their rights and freedom is stipulated in part four of article 55 of Ukraine’s Constitution. Such international judicial organs initiate investigation only following petitions from persons, whereas the person may petition them only after all national remedies for legal protection have been exhausted. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party (article 4 (2) of the Rome Statute) and accepts for handling not only those cases referred to it by application of the participating state but also on to its own initiative, when ‘the state is unwilling or unable genuinely to carry out the investigation or prosecution’.¹⁶

A dissent opinion of two judges (Ivaschenko and Selivon) was added to the conclusion of the Constitutional Court. Though many commentators find this opinion too radical¹⁷, some stands of the opinion should be mentioned.

In the opinion of Ivaschenko and Selivon it lacks common sense to state that paragraph 10 of the Preamble and article 1 of the Statute are not compatible with the Constitution of Ukraine and at the same time to recognize other articles of the Statute which specify complementary character of the Court as compatible.¹⁸ It is difficult not to agree with this opinion. The Constitutional Court mentioned several times¹⁹ in its conclusion that principle of complementarity is reflected in many articles of the Rome Statute. For instance, in paragraph 2.1 the Court mentions that article 4(2) of the Statute specifies complementary character of the ICC.²⁰ Further the Constitutional Court in paragraph 2.4 concludes that article 4(2) is in conformity with the Constitution of Ukraine.

15 Decision of the Constitutional Court of Ukraine, supra note 9, paragraph 2.1

16 Id.

17 Kuleba, supra note 14, at 39

18 Okrema Dumka Suddiv Konstytuciynogo Sudu Ukrainy Ivaschenka V.I. ta Selivona M.F. Stosovno Vysnovku Konstytuciynogo Sudu Ukrainy u Spravi pro Nadannya Vysnovku Schodo Vidpovidnosti Konstytucii Ukrainy Rymskogo Statutu Mizhnarodnogo Kryminalnogo Sudu [Dissent opinion of judges Ivaschenko and Selivon] (English translation is my own)

19 Decision of the Constitutional Court of Ukraine, supra note 9, paragraph 2.1, 2.2.3, 2.3.3

20 ‘The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party…’

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Position of the Court on this point is controversial. Other issues raised in the dissent opinion will be discussed in the following chapters.

The decision of the Constitutional Court is criticized by many Ukrainian lawyers.

The Court explaining the reason why the International Criminal Court cannot complement national organs of criminal justice does not consider the nature of complementarity. The expression ‘the ICC shall be complementary’ have been used separately from its content without taking into account the nature of phenomenon which it describes.²¹

A thorough discussion of the nature of the Court’s jurisdiction is not the main objective of this paper, but some analysis here is still necessary.

According W. Schabas explains, ‘the term ‘complementarity’ may be somewhat of misnomer, because what is established is a relationship between international and national justice that is far from ‘complementary’. Rather the two systems function in opposition and to some extent with hostility to respect to each other’.²² Though complementarity emerges explicitly only in paragraph ten of the preamble and in article 1 of the ICC Statute and other articles do not refer directly to it, the central provision regulating complementarity can be found in article 17, which addresses the relationship between national legal systems and the ICC. Moreover, article 17 is not a stand-alone provision and is linked to the complex system of inter-related articles 12 to 15, 18, 19, 20 and 53.²³ Pursuant to article 17 (1) of the Rome Statute a case is inadmissible when it is being investigated or prosecuted by a state that has jurisdiction over it, or when the case has already been investigated and the state has decided not to prosecute. The Court may only proceed when the state is unwilling or unable genuinely to carry such proceedings out.

The ICC is not a supranational court or a court of appeal. It has no competence to overrule or review the decision of any national court and has no precedence over national courts. The Statute encourages states to exercise their jurisdiction over the ICC crimes and stipulates therefore that ‘it is the duty of every state’ to exercise its criminal jurisdiction over those responsible for international crimes.²⁴ Thus, national courts of the state with jurisdiction have priority over the ICC and the Statute crimes. Each state decides when to exercise jurisdiction over the Statute crime. Neither national courts nor the ICC submit to each other and the ICC in no way replaces national courts if they proceed effectively.

Pursuant to article 17 of the Rome Statute, the Court’s jurisdiction is only complementary and may do so when state fails to investigate or undertake judicial

22 William A. Schabas, An Introduction to the International Criminal Court (2d ed. 2004), p.85

23 Florian Razesberger, The International Criminal Court: the Principle of Complementarity (2006), pp.28-29

24 Roy S. Lee, The International Criminal Court: the Making of the Rome Statute: Issues, Negotiations, Results (1999) pp. 27, 43-74, 127-42

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procedures genuinely after an ICC crime has been committed. The ICC may be called a court of last resort, because it can only pursue cases when state fails to do so.

The Constitutional Court of Ukraine, considering constitutional provisions regarding the exclusive competence of national authorities, concluded that this precludes any delegation to a jurisdiction complementary to the national system. In my opinion, these provisions could be interpreted in favor of the Statute. Defining the relationship between national authorities and the ICC, it should be taken into account that the Constitution was adopted before the establishment of the ICC. Besides article 17 provides for inbuilt safeguards that preserve national interests and judicial integrity on the domestic level.²⁵ Primacy of national courts is guaranteed by the Statute and the ICC only assumes jurisdiction where state fails to do so.

Interesting interpretation of the complementarity principle was used by the French Constitutional Council. According to its opinion, the ICC cannot act on a case when a state has decided to act in good faith.²⁶ The Council concluded that the restriction to the principle of complementarity in the case where a state deliberately evaded its obligations was derived from the rule pacta sunt servanda.²⁷ Only when state violates its obligations under the Statute, the ICC may intervene. In my opinion such interpretation of the principle is not correct, because the ICC Statute does not obligate states to investigate or prosecute and states are free to choose whether to do this or not. That is why the question is not about pacta sund servanda. The principle of complementarity governs the ICC’s jurisdiction.

A part of the conclusion of the Constitutional Court of Ukraine which is criticized by the Ukrainian lawyers is subparagraph 4 and 5 of paragraph 2.1, where the Court mentions difference between the ICC and other international judicial organs, particularly the European Court of Human Rights.

According to article 55 of the Constitution Ukrainian nationals have the right to appeal for the protection of their rights and freedoms to the ECHR. Following the standing of the Court, the difference between the International Criminal Court and other international judicial institutions that do not conflict with the Constitution lies in a way that the latter institutes proceedings: a) by appeal of the person and b) after exhausting all

25 Sharon A. Williams, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: observer’s notes, article by article (Otto Triffterer ed., 1999), p.384

26 Roy S. Lee, States’ Responses: Issues and Solutions, in States’ Responses to Issues Arising from the ICC Statute, supra note 12, at 13

27 The ICRC, Issues Raised with Regard to the Rome Statute of the International Criminal Court by National Constitutional Courts, Supreme Courts and Councils of State 18, available at www.icrc.org/web/eng/siteeng0.nsf/htmlall/59RLJW/$FILE/Issues_Raised_with_Regard_to_the_ICC_Statut e.pdf [hereinafter Issues Raised with Regard to the Rome Statute by National Constitutional Courts]

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domestic legal remedies. But it is important to take into consideration that the ECHR may also receive applications from States, non-governmental organization and group of individuals.²⁸

Analyzing the opinion of the Constitutional Court, and particularly paragraph 2.1 of this opinion, Ukrainian scholar D. Kuleba comes to conclusion that principle of exhausting of legal domestic remedies and principle of complementarity have the same basis and functions: they function only when national means of legal protection do not render justice because of ineffectiveness, unavailability or unwillingness.²⁹ It seems that both the International Criminal Court and the European Court of Human Rights are ‘supplementary remedies by character for protection of human and citizen’s rights and freedoms’. D.

Kuleba states that ‘their nature in relation to the national legal system will be the same:

both institutions help systems of national legal means to carry out the functions of every judicial body which is to dispense justice’.³⁰

This position is true from the point of view of justice’s recipient. However, there is still a difference between the ICC and the ECHR. While the European Convention of Human Rights creates substantive obligations upon State Parties, the ICC Statute does not.

The ICC tries individuals responsible for the most serious international crimes, and States Parties have only the duty to cooperate with the Court. Consequently, the position of commentators stating that if Ukraine has recognized the ECHR then it is reasonable to recognize the ICC is arguable.

1.3.2 Overcoming the inconsistency

According to the report of the European Commission for Democracy through Law, states may consider several solutions for the ratification of the Statute of Rome. These may include the following:

- insertion of a new article in the constitution, which allows all relevant constitutional problems to be settled, and avoids the need to include exceptions for all the relevant articles (used by France and Luxembourg);

- revision of all constitutional articles that must be changed;

28 Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, art 33, 34

30 Id.

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- introduce and/or apply a special procedure of approval by Parliament, as a consequence of which the Statute may be ratified, despite the fact that some articles are in conflict with the Constitution;

- interpreting certain provisions of the Constitution in a way to avoid conflict with the ICC Statute.³¹

Pursuant to article 9 of the Constitution of Ukraine, if international treaty does not comply with Ukraine’s Constitution, adherence of Ukraine to this treaty is possible only after introduction of corresponding changes into it. Thus the third alternative mentioned above is not an option here. The amendment of the Constitution is the only way for Ukraine to overcome the inconsistency today.

In my opinion, the interpretive approach could be used in earlier stage, when the Constitutional Court of Ukraine considered the Rome Statute for the subject of its compliance to Ukraine’s Constitution. Many states have found ways to interpret the relevant provisions in such a way to avoid inconsistencies.³² While judges of the Ukraine’s Constitutional Court interpreted provisions concerning immunities and surrender of nationals in a creative way, they concluded that complementarity of the ICC was incompatible with the Constitution without broad argumentation.³³ Now, when the Court has come to conclusion, Ukraine cannot ratify the Statute of Rome without constitutional amendments. However, the law on the Constitutional Court of Ukraine contains specific provision. According to this provision the Court may reconsider the case provided that the new circumstances of the case that existed at the moment the Court considered the case became evident.³⁴ The ratification of the Rome Statute by Ukraine can possibly happen sooner when the Court reconsiders the case rather than changing the Constitution.

The procedure of the constitutional amendment in Ukraine is complicated and lingering³⁵ and some scholars even say that it will be unreal to change the Constitution³⁶. The amendment should be introduced and the issue is how to do it effectively. Some states

31 Report on Constitutional Issues Raised by the Ratification of the Rome Statute of the ICC, adopted by the Venice Commission on 45^th Plenary meeting (2000), available at http://www.venice.coe.int/docs/2001/CDL- INF(2001)001-E.asp [hereinafter Report of Venice Commission] (The European Commission for Democracy through Law, better known as the Venice Commission, is the Council of Europe's advisory body on constitutional matters)

32 Lee, supra note 25, at 11

33 Vyacheslav Manukyan, Ne Vse Dorogi Vedut v Gorod Gaaga, 39(249) Yuridicheskaya Praktika, original version available at http://www.yurpractika.com/article.php?id=10004116 (English translation is my own)

34 Law on the Constitutional Court of Ukraine, supra note 7, art.68

35 Oleksander Lavrynovych, Osnovni Problemni Pytannya Implementacii Polozhen Rymskogo Statutu Mizhnarodnogo Kryminalnogo Sudu do Zakonodavstva Ukrainy ta Shlyahy ih Vyrishennya, 4 Ukrainskyi Chasopys Mizhnarodnogo Prava (2003), p.14

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could make it possible to change their constitutions and experience of these states is a valuable experience for Ukraine.

France amended its constitution by provision which is general in nature. The constitution was subsequently amended by inserting a new article that provided: ‘The Republic may recognize the jurisdiction of the ICC as provided in the treaty signed on 18 July 1998’.³⁷ Similar approach was taken by Luxembourg. A new provision stating that

‘The provisions of the Constitution do not hinder the approval of the Statute of the International Criminal Court…and the performance of the obligations arising from the Statute according to the provisions provided therein’, was added to the article 18 of the Luxembourg’s Constitution.³⁸

Taking into account the experience of these states and the opinion of the Constitutional Court, Ukrainian experts suggest two options of amending the chapter VIII of the Ukraine’s Constitution. First option is to expand article 124 of the Constitution by inserting a provision of the following content: Ukraine may recognize the jurisdiction of international judicial bodies on the basis of international treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine³⁹. Second option is to add provision providing that the International Criminal Court complements courts of general jurisdiction of Ukraine and its functioning is governed by the provisions of the Rome Statute of the International Criminal Court⁴⁰.

Both options are presented in two different draft laws on amendments to the Constitution. Pursuant to article 159 of the Ukraine’s Constitution a draft law on introducing amendments to the Constitution of Ukraine should be considered first by the Constitutional Court of Ukraine in conformity with the draft law within requirements of the Constitution. When a decision on this issue is made one of the draft laws will be considered by the Verkhovna Rada of Ukraine.

Both presented alternatives seem to be acceptable. Provision providing that the ICC complements courts of general jurisdiction and that its functioning is governed by the provisions of the Rome Statute will solve the problem of non-correspondence of the Constitution to the Rome Statute and at the same time outline the legal basis for its activity. But the first alternative gives the opportunity to avoid constitutional amendments in the future, in case of ratification of other similar international treaties.

37 Issues Raised with Regard to the Rome Statute by National Constitutional Courts, supra note 27, at 1

38 Id. at 5

39 Lavrynovych, supra note 35, at 17

40 Kostyantyn Gryschenko, Mizhnarodnyi Kryminalnyi Sud, 4 Ukrainskyi Chasopys Mizhnarodnogo Prava (2003), p.12

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2 Immunities

2.1 Irrelevance of the official capacity under the Rome Statute

2.1.1 Article 27 of the ICC Statute

In the context of the individual criminal responsibility for crimes within the jurisdiction of the International Criminal Court⁴¹, often these crimes are committed with direct or indirect participation of persons acting in their official capacity. Hindrances that may arise on the way to international prosecution of these persons are the rules that grant them immunity from persecution. Immunities that may in this case come into play can be divided into three groups: 1) immunities derived from customary international law; 2) immunities granted by international treaty rules; 3) those envisaged in national legislation.⁴²

Today it seems undisputable that senior state officials may be held accountable for acts performed in the discharge of their official duties.⁴³ The principle was confirmed in founding instruments of the Nuremberg Tribunal, Tokio Tribunal, ICTY and ICTR. Today this principle is recognized in the Rome Statute in article 27, which declares that rules in either national or international law that create immunities or otherwise shelter individuals from criminal prosecution are of no effect before the Court.

The actual wording of the article 27 is the following: ‘the Statute shall apply equally to all persons without any distinction based on official capacity…[which] shall in no case exempt from criminal responsibility, nor shall it constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person…shall not bar the Court from exercising its jurisdiction over such person’.

The purpose of this article was to clarify the scope of individual criminal responsibility for crimes under international law.⁴⁴ The main effect of article 27 of the ICC Statute is to establish that the official capacity of a person does not relieve him of

41 Rome Statute of the International Criminal Court, July 17, 1998, preamble paragraph 9 [hereinafter The Rome Statute]

42 See Antonio Cassese, International Criminal Law (2003), p.264

43 Id. at 267

44 Otto Triffterer, article 27: Irrelevance of official capacity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 1999) p.507

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individual criminal responsibility and it eliminates a substantive defense that may be put forward by state officials.⁴⁵

The first paragraph of article 27 provides that state officials are subject to prosecution by the Court even if they acted in their official capacity, official status of defendant does not exclude him from the jurisdiction of the ICC.⁴⁶ Thus the first part of article 27 of the Rome Statute deals with substantive responsibility of state officials for international crimes rather than issues of immunity.⁴⁷ The second paragraph contains an explicit denial of international and national law immunities. As Otto Triffterer states in his analysis of this paragraph the special procedural rules mentioned there are those granting exemption from criminal responsibility ratione personae and/or materiae. It also makes no difference whether such rules exclude criminal responsibility or only protect person by a procedural rule against the exercise of domestic jurisdiction like arrest and prosecution before national courts. Such rules include all national regulations even if they rank as constitutional law and all rules of general and special international law.⁴⁸

Article 27 has therefore two effects: first, no immunity will prevent an individual from being prosecuted for crimes which fall under the jurisdiction of the ICC and the second, no immunity will prevent a person from being surrendered to the ICC on the request of the Court. The intention of the article is to nullify any existing immunities conferred to individuals with official capacity for the purposes of prosecutions before the Court.

Consequently, on the one hand Article 27 constitutes a waiver of national law immunities and States parties are therefore obliged to arrest and surrender their own officials even if those officials would otherwise be entitled to immunity under national law.

On the other hand State parties to the Statute must not respect any immunity with regard to nationals of other states parties when complying with the request of the ICC for arrest or surrender.⁴⁹

And as the concluding remark, article 27 of the ICC Statute does not provide for a requirement for the States to abolish immunities provided for in the domestic legislation.

States parties to the Statute do not need to eliminate all existing forms of immunity for

45 Hazel Fox, The Law of State Immunity (2002), pp.429-430

46 See Dapo Akande, International Law Immunities and the International Criminal Court, 98(3) Am. J. Int’l L. (2004), pp.419-420

47 Id. at 419

48 See Triffterer, supra note 44, p.512. For more information on the issue of immunities ratione personae/materiae, see Cassese, supra note 42, at 264-273

49 See Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, in The International Criminal Court (Olympia Bekou, Robert Cryer ed., 2004), pp.352-353 (The author also points out that the scope of article 27 is limited only to state parties, immunitites of non-party states cannot be abrogated by the Statute because of the rule of pacta tertiis – a treaty does not create obligations or rights for a third state )

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their representatives.⁵⁰ The Rome Statute simply requires an exception to the general rule of the immunity to be provided for by the parties, if they have not already done so.

2.1.2 States’ responses

Constitutions of many states contain provisions providing immunities to certain officials, such as head of state, governmental officials, members of the parliament etc. The scope and extent of constitutional immunities may be different: some constitutions grant immunities that are strictly attached to certain acts, others confer immunities from any penal process. Taking into account the fact that most constitutions were drafted before the ICC was established, immunities mentioned in these constitutions may contravene article 27 of the Rome Statute and states find different solutions to this problem.

According to the Manual for the ratification and implementation of the Rome Statute, where there is a concern about inconsistencies between the Statute and national constitutions over immunities, states have taken one of the following steps:

• amending their constitution

• interpreting the national constitution

• lefting the issue for the future when it was judged highly unlikely to have any real application.(the Netherlands, Norway and Spain essentially did this with respect to their monarchs).⁵¹

States, like the Czech Republic, Ireland, Latvia, Belgium, France, Luxembourg and Liechtenstein decided that constitutional amendment is necessary. The French Constitutional Council held that, in view of particular regimes of penal responsibility of the President, members of the Parliament and members of the Assembly established in articles 26, 68 and 68-1 of the French Constitution, article 27 of the Rome Statute was contrary to the Constitution.⁵² As it was mentioned in previous chapter, France introduced a general provision to its Constitution that permitted avoiding changing of every particular article that was not compatible with the Statute. Similar approach was taken by Luxembourg.⁵³

50 See The International Centre for Criminal Law Reform and Criminal Justice Policy, International Criminal Court: Manual for the Ratification and Implementation of the Rome Statute (3d ed. 2008), p.21, available at http://www.iccnow.org/documents/ICC_Manual_-_March_2008_-_ICLR.pdf

51 Id. at 21-22

52 Issues Raised with Regard to the Rome Statute by National Constitutional Courts, supra note 27, at 1

53 See for details Issues Raised with Regard to the Rome Statute by National Constitutional Courts, supra note 27, at 5

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The Czech Republic made its constitutional amendment by a specific provision, stating that no special conditions provided for the prosecution of deputy, senator, the President of the Republic, and judge of the Constitution Court shall apply as regards crimes mentioned in the ICC Statue.⁵⁴

As Helen Duffy states, amendment does not necessarily indicate rejection of the arguments for harmonious interpretation. While in some states constitutional amendment was indeed necessary for consistency with the Statute, in others amendment may have been considered the preferable – rather than strictly necessary – route. This step was taken in order to minimize the possibility of future challenges or perceptions of inconsistency.⁵⁵

At the same time many states have decided that amendment is not necessary. These states chose the way of authoritative interpretation of the constitutional provisions in order to avoid conflict with the Statute. These are countries like Azerbaijan, Argentina, Brazil, Canada, Cambodia, Finland, New Zeland, Portugal, Ukraine and the United Kingdom⁵⁶.

The Venice Commission examined the practice of states on this issue and suggested three possible ways of interpretation of constitutions. According to the first one, states may interpret the relevant constitutional provisions in a way that those provisions construed as conferring immunity by reason of person’s ‘official capacity’ only in the national and not international courts. This would amount to establishing two tiers of responsibility of office- holders, at the national and international levels. A state may also maintain that a tacit exception from immunity was inherent in its constitution. A head of state or government who commits the most serious crime of concern to the international community probably violates the fundamental principles of his country’s constitution, therefore he cannot expect to be protected by the constitution. And the third possible interpretation would be to maintain that lifting the immunity of heads of state or government has become a customary practice in public international law.⁵⁷ This trend in international law was confirmed by the House of Lords in decision on General Pinochet’s immunity, as well as in Arrest Warrant case (Congo v. Belgium) by the ICJ.⁵⁸

54 See Government Bill on the constitutional law amending the constitutional law of the Czech National Council No. 1/1993 Coll., Constitution of the Czech Republic, as amended by constitutional law no.347/1997 Coll.

55 Duffy, supra note 8, at 11 (the article explores arguments as to how the constitutional provisions can be read consistently with the Statute)

56 For more details in respect of some of these states, see States’ Responses to Issues Arising from the ICC Statute, supra 12

57 See Report of Venice Commission, supra note 31

58 See Regina v. Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division), the House of Lords, judgement of 25 November 1998; Case Concerning the Arrest Warrant (Democratic Republic of the Congo v. Belgium), International Court of Justice, judgment of 14 February 2002, paragraph 56-61

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Consequently, practice of states in dealing with the problem of incompatibility of constitutional immunities with article 27 of the Rome Statute is different. Every state chooses its own measures to resolve the problem and this practice may be useful for states that are still resolving the problem.

2.2 Conformity with the constitutional provisions

2.2.1 Issue of immunities in the Ukrainian Constitution

2.2.1.1 President of Ukraine

The President of Ukraine is the guarantor of state sovereignty and the territorial integrity of Ukraine, as well as the Constitution of Ukraine and human and citizens' rights and freedoms.⁵⁹ Realization of these and other constitutional provisions that determine legal status of the President and his responsibilities is impossible without proper legal protection. Such protection is given by article 105 of the Ukraine’s Constitution.

According to this article ‘the President of Ukraine enjoys the right of immunity during the term of office’.

According to the Constitution, the President may be held accountable only on specific conditions. Article 111 stipulates that the Ukrainian President can be discharged from the post by the Verkhovna Rada by the procedure of impeachment in the event that he or she commits state treason or other crime. The issue of the discharging of the President of Ukraine from office by the procedure of impeachment is initiated by the majority of the constitutional composition of the Verkhovna Rada of Ukraine. To carry out the investigation, the Parliament of Ukraine establishes a special temporary investigatory commission whose composition includes a special prosecutor and special investigators.

The conclusions and proposals of the temporary investigatory commission are considered in meetings of the Verkhovna Rada of Ukraine. If there is a legal basis the Verkhovna Rada of Ukraine adopts a decision on impeachment of the President of Ukraine if voted for by no less than two-thirds of its constitutional composition.⁶⁰

59 Constitution of Ukraine art.102 (2)

60 See Constitution of Ukraine art.111

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In order to understand the nature of the personal immunity of the President, some decisions of the Constitutional Court of Ukraine should be taken into consideration, because it is the only body that provides the official interpretation of the Constitution of Ukraine.⁶¹

In its decision on immunity and impeachment of the President of Ukraine, the Constitutional Court concluded that the immunity of the President should be understood as part of his constitutional status. It intends to provide conditions for the realization of his responsibilities. The Court has also emphasized that the President’s right to immunity ceases when the President steps off the office.⁶²

The Court states that while in office the President cannot be held accountable and no criminal proceeding can be initiated against him. The procedure of impeachment established by the Constitution of Ukraine is the only way to call the President to the constitutional liability. And by its legal nature this constitutional process is extrajudicial and has nothing to do with criminal proceedings.⁶³

Consequently, the immunity of the President of Ukraine is not absolute. He may be deprived of immunity through the impeachment in case of violation of the Constitution.

2.2.1.2 People’s deputies and judges

The People’s Deputies and judges are the two categories of state officials that are conferred immunity by the Constitution of Ukraine.

Provisions of article 76 of the Constitution of Ukraine stipulate that ‘the Verkhovna Rada of Ukraine consists of 450 People’s Deputies of Ukraine who are elected for a four- year term’. The immunity of People’s Deputies of Ukraine is guaranteed by article 80 of the Constitution. It also provides that deputies ‘shall not be held criminally liable, detained or arrested without the consent of the Verkhovna Rada of Ukraine’.⁶⁴

The Constitutional Court of Ukraine addressed the issue of Deputies’ immunities in several cases. As the Court explained in its decision on Deputies’ immunities, the specific

61 Constitution of Ukraine art.147 (2): ‘The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine’

62 See Rishennya Konstytuciynogo Sudu Ukrainy u Spravi pro Oficiyne Tlumachennya Polozhen Chastyny Pershoi statti 105, Chastyny Pershoi Statti 111 Konstytucii Ukrainy (Sprava schodo nedotorkannosti ta impichmentu prezydenta Ukrainy), #19-рп/2003 (2003) [Decision of the Constitutional Court of Ukraine on the immunity and impeachment of the President of Ukraine], available at http://zakon.rada.gov.ua/cgi- bin/laws/main.cgi?nreg=v019p710-03 (English translation is my own)

63 Id.

64 See Constitution of Ukraine art.80 (1) and 80(3)

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purpose of the immunity is to secure that the deputy performs his duties effectively and without obstruction.⁶⁵ The Court also mentioned that Deputies enjoy immunities from the moment they are elected until they resign.

Explaining the nature of the Deputies immunities in the same decision, the Constitutional Court held that immunities of the Peoples’ Deputies are not personal privileges of the deputies but of public and legal nature.

The Court interpreted the article 80 of the Constitution of Ukraine as establishing a special procedure of bringing People’s Deputies to account, their detention and arrest. Such measures may be applied to the Deputy only with the consent of the Verkhovna Rada.⁶⁶ In its decision on guaranties of Deputy’s immunity, the Constitutional Curt held that the aim of deputy’s immunity is not only to protect the deputy from unlawful interference in his activity but also to assist the appropriate functioning of the Verkhovna Rada.⁶⁷

Hence the immunity of the People’s Deputies is not absolute. They can be held accountable but only on specific conditions.

The Constitution also guarantees immunity of judges according to article 126 of the Constitution. Paragraph 3 of article 126 stipulates that a judge shall not be detained or arrested prior to court’s decision is made and only with the consent of the Verkhovna Rada.

2.2.2 The Opinion of the Constitutional Court

Upon the request for an examination of the Rome Statute’s constitutionality, the question whether article 27 of the Rome Statute corresponds to paragraphs 1 and 3 of article 80 and paragraph 1 of article 105, as well as paragraphs 1 and 3 of article 126 of the Ukraine’s Constitution was raised, which guarantee immunity of the President of Ukraine, People’s Deputies and judges.

65 Rishennya Konstytuciynogo Sudu Ukrainy schodo oficiynogo Tlumachennya Polozhen’ Chastyny Tret’oi Statti 80 Konstytucii Ukrainy (Sprava pro Deputatsku nedotorkannist), # 9-рп/99 (1999) [Decision of the Constitutional Court of Ukraine on Deputy’s Immunity], available at http://zakon.rada.gov.ua/cgi- bin/laws/main.cgi?nreg=v009p710-99 (English translation is my own)

66 See Id., part 4

67 See Rishennya Konstytuciynogo Sudu Pro Oficiyne Tlumachennya Polozhen Chastyn Pershoi, Tret’oi Statti 80 Konstytucii Ukrainy, Chastyny Pershoi Statti 26, Chastyn Pershoi, Drugoi, Tret’oi Statti 27 Zakonu Ukrainy ‘Pro Status Narodnogo Deputata Ukrainy’ (Sprava pro Garantii Deputatskoi Nedotorkannosti), # 12- рп/2003 (2003) [Decision of the Constitutional Court of Ukraine on guarantees of Deputy’s immunity], available at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=v012p710-03 (English translation is my own)

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In its opinion the Constitutional Court relied on article 18 of the Constitution of Ukraine. Article 18 stipulates that international activities of Ukraine are based on generally recognized principles and norms of international law. The Court has mentioned that one of these principles is the principle of diligent performance of international obligations which aroused in form of international and legal custom ‘pacta sund servanda’ and received its reflection in numerous international agreements.⁶⁸

The Court has concluded that ‘the establishment of responsibility for committing majority of crimes stipulated by the Rome Statute is an international and legal obligation of Ukraine, according to other international and legal documents that entered into force for [Ukraine]’. Particularly, it is the Convention on prevention and punishment of the crimes of genocide of 9 December 1948, Geneva Convention relative to protection of civilian persons in time of war of 12 August 1949, Geneva Convention relative to the treatment of prisoners of war of 12 August 1949, Convention for the protection of cultural property in the event of armed conflict of 14 May 1954, the International Convention on the suppression and punishment of the crime of apartheid of 30 November 1973, Convention against torture and other cruel, inhuman or degrading treatment of 10 December 1984.

The Constitutional Court observed that ‘the Statute reflects the majority of provisions that determine crimes listed in the abovementioned and other conventions Ukraine is part of. Provisions of the Statute prohibiting the crime of genocide, crimes against humanity, war crimes, the crime of aggression are considered nowadays as a customary rule of international law which was recognized by international organs. Therefore, their criminal nature according to article 18 of Ukraine’s Constitution does not depend on Ukraine’s adherence to the Statute and its entry into force’.⁶⁹

It is the Court’s standing that immunities of the President of Ukraine, People’s Deputies and judges concern only national jurisdiction and may not be an obstacle to exercise jurisdiction by the International Criminal Court with regard to those who commit crimes stipulated by the Statute. ‘It complies completely with international obligations of Ukraine’.⁷⁰ In the view of the Court immunity of official persons is connected with their performance of important state functions, it is not their privilege and therefore it cannot be considered as a guarantee of their impunity. Immunity of the President, People’s Deputies

68 Decision of the Constitutional Court of Ukraine on the conformity of the Rome Statute with the Constitution of Ukraine, supra note 9, paragraph 2.2

69 Id.

70 Id., paragraph 2.2.1

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and judges stipulate only specific conditions for instituting criminal proceedings against them.⁷¹

It follows from the Court’s position that Ukraine is aware of its obligation of international criminal responsibility for its state officials since the USSR ratified the Genocide Convention back in 1954. According to article 4 of the Genocide Convention

‘persons committing genocide…shall be punished whether they are constitutionally responsible rulers, public officials or private individuals’. This compatibility issue has already been resolved when Ukraine ratified other international treaties that establish the duty to prosecute or extradite persons regardless of the official status of the accused.

Ukraine is one of the states where the provisions of international treaties in the field of human rights take precedence over conflicting provisions of the Constitution.⁷²

In my opinion, the Court rightly pointed out the objective of immunities of the Ukrainian state officials. Although the Constitution of Ukraine does not stipulate it expressly, immunities of the President, Deputies and judges are there to protect them from interference in the exercising of their functions. But the Constitution does not guarantee impunity for international crimes.

While most Ukrainian lawyers seem to agree with the approach taken by the Court, the judges Ivaschenko and Selivon disagree with the opinion of the Constitutional Court, and expressed their position in their dissent opinion.⁷³

In the view of Ivaschenko and Selivon, any international legal norm should be considered in the light of the supremacy of the Constitution. This principle is envisaged in article 9 (2) of the Constitution. According to it ‘the conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine’. In accordance with the principle of supremacy, the Constitution provides for mechanism of preceding and following control of the constitutionality of international treaties. ‘The Constitutional Court of Ukraine, on the appeal of the President of Ukraine or the Cabinet of Ministers of Ukraine, provides opinions on the conformity with the Constitution of Ukraine of international treaties of Ukraine that are in force, or the international treaties submitted to the Verkhovna Rada of Ukraine for granting agreement on their binding nature’.⁷⁴ Thus, the authors of the dissent opinion say that the application of arguments in support of constitutionality of provisions of the Statute referring to treaties that are binding for Ukraine is possible only in case if the

71 Id., paragraph 2.2.2

72 See Report of Venice Commission, supra note 31 (It is mentioned that this situation is peculiar to states of Central and Eastern Europe)

73 See Dissent Opinion, supra note 18, paragraph 2

74 Constitution of Ukraine art.151

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Constitutional Court of Ukraine made a decision on conformity of these treaties with the Constitution.

Another part of the decision of the Constitutional Court that is questioned is the conclusion that immunity of Ukrainian officials concerns only national jurisdiction.

Ivaschenko and Selivon argue that following this line of argumentation norms of international law and constitutional norms operate separately from each other and each of them have their own field of application. Following this approach there cannot be any contradictions between national and international laws, and then there is no need in constitutional provisions that provide for interrelation between the Constitution of Ukraine and international treaties.

It is difficult not to agree with the dissent opinion when it comes to the first argument expressed earlier. The Constitution of Ukraine clearly provides for its supremacy.

Consequently, interpreting the constitutional provisions the Court may rely only on the international treaties that are in conformity with the Constitution, in other words the Constitutional Court gave the opinion on the conformity of these treaties.

As for the second argument, it is difficult to agree with what was argued in the dissent opinion. What I think the Constitutional Court meant was two different levels of responsibility of state officials – one at the national and the other one at the international levels. And thus this operation of immunities on different levels has nothing to do with the separation of international and domestic law. The matter concerns separation of responsibilities: when responsibility of the official is exception at national level it does not apply at the international level.

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3. Surrender of Ukrainian nationals to the ICC

3.1 Nature of surrender

The Rome Statute provides that: ‘The Court may transmit a request for the arrest and surrender of a person…[and] State Parties shall, in accordance with the provisions of this part [of the Statute] and the procedure under their national law, comply with the request for arrest and surrender’.⁷⁵

The surrender of suspects and accused is one of the core obligations of states to the ICC and is significant to its proper functioning. Any state party is obligated to cooperate whenever the arrest or surrender of a person suspected of committing a Statute crime is sought. The surrender procedure applies both to nationals and non-nationals and the issue of compatibility may arise in this case since constitutions of many states prohibit the extradition of nationals. It is clear from provisions of article 89 that states may not use constitutional prohibition against extradition as a ground for refusing surrender.⁷⁶

Three possible options were discussed during the negotiations of the Rome Statute, regarding the term that could refer to the delivery of a person to the ICC: extradition, transfer, surrender. In most states extradition was interpreted to refer to the process for the delivery of individuals to another state for prosecution. The term ‘transfer’ was considered as a process in which the individual is simply arrested and transferred to the ICC. For some states the term ‘extradition’ was unacceptable because of constitutional restrictions, others could not accept the term ‘transfer’ because that would mean restriction of individual’s liberty without safeguards associated with extradition. Eventually the term ‘surrender’ was adopted as a compromise.⁷⁷

Both the definition of surrender and extradition were inserted in article 102 of the Rome Statute for the purpose to ensure that ‘traditional extradition law is not applicable to the special surrender regime’.⁷⁸ The article 102 states: ‘For the purposes of this Statute:

a) ‘surrender’ means the delivering up of a person by a State to the Court, pursuant to this Statute.

75 The Rome Statute art. 89(1)

76 See Bert Swart, Arrest and Surrender, in The Rome Statute Of the International Criminal Court: a Commentary (Antonio Cassese, Paolo Gaeta, John R W D Jones eds., 2002), p.1680

77 See Darryl Robinson, The Rome Statute and its impact on national laws, in The Rome Statute of the International Criminal Court: a Commentary (Antonio Cassese, Paolo Gaeta, John R W D Jones eds., 2002), p.1849-1852

78 Goran Sluiter, The Surrender of War Criminals to the International Criminal Court, in The International Criminal Court (Olympia Bekou, Robert Cryer ed., 2004), 283

Constitutionality of the Rome Statute in Ukraine